Common use of Preferential Rights Clause in Contracts

Preferential Rights. SM Energy shall, within 10 days after the Execution Date, send to each holder of a Preferential Right a notice requesting the election or waiver by each such holder of its applicable Preferential Right, in each case in compliance with the contractual provisions applicable to such Preferential Right, requesting a waiver of such right. Any Preferential Right must be exercised subject to all terms and conditions set forth in this Agreement, including the successful closing of this Agreement pursuant to Article XI. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be the Allocated Value of such Asset. (i) All Assets burdened by Preferential Rights for which (A) the applicable Preferential Right has been waived, or (B) the period to exercise such Preferential Right has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions of this Agreement. (ii) If, prior to the Closing (A) any holder of a Preferential Right notifies SM Energy that it intends to consummate the purchase of the portion of the Assets to which its Preferential Right applies or (B) the time for exercising a Preferential Right has not expired and the holder of such Preferential Right has not waived such Preferential Right, then, in each case, such portion of the Assets affected by such Preferential Right shall be excluded from the Assets to be conveyed to Buyer at Closing and the Purchase Price shall be reduced by the Allocated Value of such excluded portion of the Assets. SM Energy shall be entitled to all proceeds paid by a Person exercising a Preferential Right prior to the Closing. If, after Closing (1) such holder of such Preferential Right thereafter fails to consummate the purchase of the portion of the Assets covered by such Preferential Right or (2) the time for exercising such Preferential Right expires without exercise by the holder thereof, then SM Energy shall (x) so notify Buyer and (y) on or before 10 days following delivery of such notice, assign such portion of the Assets to Buyer pursuant to an assignment in substantially the form of the Assignment and the Purchase Price shall be increased by an amount equal to the Allocated Value of the such portion of the Assets.

Preferential Rights. SM Energy shallExcept for Transfers to Affiliates specifically permitted under Section 9, within 10 days after if any of the Execution DatePXP Group receives a bona fide offer from any person other than Chesapeake for the sale, send to each holder transfer or disposition of a Preferential Right a notice requesting the election or waiver by each such holder any of its applicable Preferential Rightinterest in the Joint Leases or a sale transfer or disposition of the equity of any of the PXP Group (except of the stock or equity of Plains Exploration & Production Company) which owns an interest in the Joint Leases (whether by merger, in each case in compliance with consolidation, equity sale or otherwise, except of Plains Exploration & Production Company or the contractual provisions applicable stock or equity therein) (the “PXP Interests”) which is acceptable to such Preferential Rightthe PXP Group, requesting then PXP will deliver or cause to be delivered a waiver written notice (the “Notice of such right. Any Preferential Right must be exercised subject Sale”) to all terms and conditions set forth in this Agreement, including the successful closing of this Agreement pursuant to Article XIChesapeake. The consideration payable under this Agreement for any particular Asset for purposes Notice of Preferential Right notices shall be Sale will include (a) a statement of the Allocated Value of such Asset. PXP Group’s bona fide intention to sell or transfer one or more PXP Interests; (i) All Assets burdened by Preferential Rights for which (Ab) the applicable Preferential Right has been waived, or name and address of the prospective transferee (Bthe “Buyer”); (c) the period to exercise such Preferential Right has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions of this Agreement. (ii) If, prior to the Closing (A) any holder of a Preferential Right notifies SM Energy that it intends to consummate the purchase of the portion of the Assets PXP Interests to which its Preferential Right applies be sold or transferred; (Bd) any sales package, reserve evaluations or other data or information prepared or used by the PXP Group in connection with such contemplated sale or transfer; (e) the time terms and conditions of the contemplated sale or transfer; (f) the purchase price or other consideration that the Buyer will pay or provide for exercising such PXP Interests; (g) the expected closing date of the transaction; and (h) such other information as Chesapeake may reasonably request to facilitate the decision whether or not to exercise the rights granted in this Section. The Notice of Sale will constitute an irrevocable offer by the PXP Group to sell to Chesapeake the PXP Interests proposed to be sold to the Buyer, on the same terms and conditions stated in the Notice of Sale. Such offer will remain open for a Preferential Right has period of fifteen (15) days after receipt of the Notice of Sale. Within such fifteen (15) day period, Chesapeake may elect to accept such offer by delivering to the PXP Group written notice of its irrevocable election to accept such offer. If Chesapeake does not expired and accept such offer within such fifteen (15) day period with respect to all of the holder PXP Interests proposed to be sold, then the PXP Group will be free to sell or transfer any PXP Interests included in the Notice of Sale to the Buyer on the same terms set forth in the Notice of Sale within ninety (90) days after the expiration of such Preferential Right has not waived such Preferential Rightfifteen (15) day period, thenprovided, in each casehowever, such portion that any sale or transfer to a Buyer other than Chesapeake will be made expressly subject to this Agreement and all of the Assets affected by such Preferential Right shall rights of Chesapeake hereunder. If the sale to the Buyer is not so consummated, the terms of this Section will again be excluded from the Assets applicable to be conveyed to Buyer at Closing and the Purchase Price shall be reduced any voluntary transfer of PXP Interests by the Allocated Value of such excluded portion PXP Group. If Chesapeake elects to purchase or acquire all of the Assets. SM Energy shall be entitled PXP Interests pursuant to all proceeds paid by a Person exercising a Preferential Right prior to this Section, the Closing. If, after Closing (1) such holder closing of such Preferential Right thereafter fails to consummate the purchase of the portion of the Assets covered by such Preferential Right or (2) the time for exercising such Preferential Right expires without exercise by the holder thereof, then SM Energy shall (x) so notify Buyer and (y) sale will occur on or before 10 days the ninetieth (90th ) day following delivery of the Notice of Sale. At such noticeclosing, assign such portion Chesapeake will deliver the cash or other consideration payable to the order of the Assets to Buyer pursuant to an assignment in substantially PXP Group, against delivery by the form PXP Group of valid conveyances of the Assignment PXP Interests being purchased, free and the Purchase Price shall be increased by an amount equal to the Allocated Value clear of the such portion of the Assetsall liens, claims, charges and encumbrances and duly executed in good form for transfer.

Preferential Rights. SM Energy shallSeller will use all reasonable efforts, within 10 consistent with industry practices in transactions of this type, to identify, with respect to all Properties, the names and current addresses of parties holding Preferential Rights that are identified on Exhibit 4.1(g). Within five (5) days after of the Execution Dateexecution of this Agreement, send to each holder Seller will request, from the parties so identified (and in accordance with the documents creating such rights), waivers of Preferential Rights. Seller shall provide Buyer with copies of such requests and of all responses and other correspondence related thereto. If a party from whom a waiver of a Preferential Right a notice requesting the election or waiver by each such holder of its applicable Preferential Right, in each case in compliance with the contractual provisions applicable to is requested exercises such Preferential Right, requesting Seller will tender to such party the required interest in the Property (at a price equal to the Allocated Amount, reduced appropriately, if less than the entire Property must be tendered), and the interest in such Property will be excluded from the transaction contemplated hereby and the unadjusted Purchase Price will be adjusted downward by the amount actually paid to Seller by the party exercising such right. If, at Closing, a party from whom a waiver of such right. Any a Preferential Right must be exercised subject to all terms is requested has not provided such waiver, and conditions set forth in this Agreement, including the successful closing of this Agreement pursuant to Article XI. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be the Allocated Value of such Asset. (i) All Assets burdened by Preferential Rights for which (A) the applicable Preferential Right has been waived, or (B) the period of time to exercise such Preferential Right has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Rightnot expired, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions of this Agreement. (ii) If, prior to the Closing (A) any holder of a Preferential Right notifies SM Energy that it intends to consummate the purchase of the portion of the Assets to which its Preferential Right applies or (B) the time for exercising a Preferential Right has not expired and the holder of such Preferential Right has not waived such Preferential Right, then, in each case, such portion of the Assets affected by such Preferential Right shall be excluded from not constitute a Defect, and Seller shall convey the Assets affected Property subject to be such Preferential Right. Upon the exercise of any Preferential Rights after the Closing with respect to any Property conveyed to Buyer, Buyer shall tender the required interest in such Property affected by such unwaived Preferential Right, at Closing and the Purchase Price shall be reduced by the Allocated Value Amount for such affected Property (or portion thereof) to the holder, or holders, of such excluded portion of right. In return for tendering the AssetsProperty to such holder(s), Buyer shall collect and retain such amount from such purchaser. SM Energy shall be entitled to all proceeds paid by a Person exercising a Preferential Right prior to the Closing. If, after At Closing (1) such holder of such Preferential Right thereafter fails to consummate the purchase of the portion of the Assets covered by such Preferential Right or (2) the time for exercising such Preferential Right expires without exercise by the holder thereof, then SM Energy shall (x) so notify Buyer and (y) on or before 10 days following delivery of such notice, Seller will assign such portion of the Assets to Buyer pursuant the Properties, including any Properties that are subject to an assignment in substantially the form of the Assignment and the Purchase Price shall be increased by an amount equal unexercised Preferential Right, subject to the Allocated Value of the such portion of the Assetsright to purchase.

Preferential Rights. SM Energy shall, within 10 days after the Execution Date, send to each holder of a Preferential Right a notice requesting the election or waiver by each such holder of its applicable Preferential Right, in each case in material compliance with the contractual provisions applicable to such Preferential Right, requesting a waiver of such right. Any Preferential Right must be exercised subject to all terms and conditions set forth in this Agreement, including the successful closing Closing of this Agreement pursuant to Article XI. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be the Allocated Value of such Asset. (i) All Assets burdened by Preferential Rights for which (A) the applicable Preferential Right has been waived, or (B) the period to exercise such Preferential Right has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions of this Agreement. (ii) If, prior to the Closing (A) any holder of a Preferential Right notifies SM Energy that it intends to consummate the purchase of the portion of the Assets to which its Preferential Right applies or (B) the time for exercising a Preferential Right has not expired and the holder of such Preferential Right has not waived such Preferential Right, then, in each case, such portion of the Assets affected by such Preferential Right shall be excluded from the Assets to be conveyed to Buyer at Closing and the Purchase Price shall be reduced by the Allocated Value of such excluded portion of the Assets. SM Energy shall be entitled to all proceeds paid by a Person exercising a Preferential Right prior to the Closing. If, after the Closing but prior to the date of final settlement of the Purchase Price under Section 2.6, (1) such holder of such Preferential Right thereafter fails to consummate the purchase of the portion of the Assets covered by such Preferential Right or (2) the time for exercising such Preferential Right expires without exercise by the holder thereof, then SM Energy shall (x) so notify Buyer and (y) on or before 10 days following delivery of such notice, assign such portion of the Assets to Buyer pursuant to an assignment in substantially the form of the Assignment and the Purchase Price shall be increased by an amount equal to the Allocated Value of the such portion of the Assets.

Preferential Rights. SM Energy shallPrior to the Closing, within 10 days Seller shall use commercially reasonable efforts to comply with all preferential rights to purchase or similar rights relative to the sale of any of the Properties as set forth in Schedule 4.1(x) (the “Preferential Rights”). Seller shall not be required to provide consideration or undertake obligations to or for the benefit of the holders of the Preferential Rights (other than as set forth in the instrument creating the Preferential Right) in order to satisfy its obligations under this Section 7.2. In accordance with this Agreement and the applicable Contracts, promptly after the Execution Dateexecution of this Agreement, send Seller shall deliver by mail written notices of the proposed transfer of any Property subject to each holder the Preferential Rights to the holders of such Preferential Rights. Seller shall promptly notify Buyer if any Preferential Right is exercised or if the requisite period has elapsed without said right having been exercised. If a third party who has been offered an interest in any Property pursuant to a Preferential Right a notice requesting elects, prior to the election Closing, to purchase such Property pursuant to the aforesaid offer, then the Property or waiver part thereof so affected will be eliminated from the Properties, the Purchase Price will be reduced by each the portion of the Allocated Value attributable to such holder of its applicable Preferential Right, in each case in compliance with the contractual provisions applicable to Property that is affected by such Preferential Right, requesting a waiver of such right. Any Preferential Right must be exercised and subject to all the other terms and conditions set forth in of this Agreement, including the successful closing of this Agreement pursuant Parties shall proceed to Article XI. The consideration payable under this Agreement for Closing; provided, however, if any particular Asset for purposes of Preferential Right notices such Purchase Price reduction equals or exceeds $1,000,000.00, then Buyer shall be have the Allocated Value of such Asset. (i) All Assets burdened by Preferential Rights for which (A) the applicable Preferential Right has been waived, or (B) the period right to exercise such Preferential Right has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions of terminate this Agreement. (ii) If. Otherwise, prior to the Closing (A) any holder of a Preferential Right notifies SM Energy that it intends to consummate the purchase of the portion of the Assets to which its Preferential Right applies or (B) the time for exercising a Preferential Right has not expired and the holder of such Preferential Right has not waived such Preferential Right, then, in each case, such portion of the Assets affected by such Preferential Right Properties shall be excluded from the Assets to be conveyed to Buyer at Closing subject to any Preferential Right that has not been waived; provided, however, if (i) the holders of one or more of the Preferential Rights have not either waived or exercised such Preferential Rights because the time periods to exercise such Preferential Rights have not expired as of the time scheduled for Closing hereunder and (ii) the Purchase Price total of the Allocated Values of the Properties subject to such Preferential Rights exceeds $1,000,000.00, then Buyer shall have the right to delay the Closing until such time periods have expired. If a third party elects to purchase any Property pursuant to a Preferential Right after the Closing Date, Buyer shall be reduced by the Allocated Value of obligated to convey such excluded portion of the Assets. SM Energy Property to such third party and shall be entitled to all proceeds paid by a Person exercising a Preferential Right prior to the Closing. If, after Closing (1) such holder consideration for the sale of such Preferential Right thereafter fails to consummate the purchase of the portion of the Assets covered by such Preferential Right or (2) the time for exercising such Preferential Right expires without exercise by the holder thereof, then SM Energy shall (x) so notify Buyer and (y) on or before 10 days following delivery of such notice, assign such portion of the Assets to Buyer pursuant to an assignment in substantially the form of the Assignment and the Purchase Price shall be increased by an amount equal to the Allocated Value of the such portion of the AssetsProperty.

Preferential Rights. SM Energy shall(a) After the date hereof, within 10 days after Seller shall promptly notify all holders of preferential rights to purchase all or any portion of the Execution Date, send to each holder Purchased Assets (“Preferential Rights”) of a Preferential Right a notice requesting the election or waiver by each such holder of its applicable Preferential Right, in each case in compliance with the contractual provisions applicable to such Preferential Right, requesting a waiver of such right. Any Preferential Right must be exercised subject to all terms and conditions set forth in this Agreement, including the successful closing of this Agreement pursuant to Article XI. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be the Allocated Value of such Asset. (i) All Assets burdened by Preferential Rights for which (A) the applicable Preferential Right has been waived, or (B) the period to exercise such Preferential Right has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions their rights as result of this Agreement. (iib) IfIn the event that any holder of Preferential Right exercises such Preferential Right prior to the Closing, the Purchased Assets subject to such Preferential Right (as well as all other Purchased Assets as may be reasonably necessary to effect the exclusion of the affected Purchased Asset due to any uniformity of interest provisions, unit agreements or other contractual or operational restrictions on the transfer of such affected Purchased Asset) shall be excluded and deleted from this Agreement, the Base Purchase Price shall be reduced by an amount equal to the aggregate Allocated Values of such affected Purchased Assets and, subject to Sections 7.2 and 7.3, the Closing shall occur as to the remainder of the Purchased Assets (or interests therein), if any. (c) In the event that any holder of Preferential Right fails to exercise such Preferential Right prior to the Closing (A) any holder of a Preferential Right notifies SM Energy that it intends to consummate the purchase of the portion of the Assets to which its Preferential Right applies or (B) and the time period for exercising a Preferential Right has not expired and the holder exercise or waiver of such Preferential Right has not waived such Preferential Rightyet expired, then, in each case, such portion of the Purchased Assets affected by subject to such Preferential Right and all other Purchased Assets as may be reasonably necessary to effect the exclusion of the affected Purchased Asset due to any uniformity of interest provisions, unit agreements or other contractual or operational restrictions on the transfer of such affected Purchased Asset shall be excluded from the Assets to be conveyed to Buyer at Closing retained by Seller and the Base Purchase Price shall be reduced by an amount equal to the aggregate Allocated Value Values of such excluded portion Purchased Assets, and, subject to Sections 7.2 and 7.3, the Closing shall occur as to the remainder of the Assets. SM Energy shall be entitled to all proceeds paid by a Person exercising a Preferential Right prior Purchased Assets (or interests therein), if any. (d) If, subsequent to the Closing. If, after Closing (1) such holder of such any Preferential Right thereafter fails to consummate the purchase of the portion of the Assets covered by such Preferential Right is waived, or (2) if the time period otherwise set forth for exercising such Preferential Right expires without exercise by expires, in either case prior to the holder thereof, then SM Energy shall (x) so notify Buyer and (y) on or before 10 days following delivery of such notice, assign such portion expiration of the Assets to Post-Closing Period, Seller and Buyer shall effect a Closing pursuant to an assignment in substantially the form of the Assignment Article 7 (and the Purchase Price other terms and conditions herein) with respect to, and Seller shall be increased by transfer to Buyer, the Purchased Assets (or interests therein) subject to such Preferential Right, and Buyer shall pay to Seller an amount equal to the aggregate Allocated Value Values of the such portion of the Purchased Assets.

Preferential Rights. SM Energy shall, within 10 days after the Execution Date, send to each holder of a Preferential Right a notice requesting the election or waiver by each such holder of its applicable Preferential Right, in each case in compliance with the contractual provisions applicable to such Preferential Right, requesting a waiver of such right. (a) Any Preferential Right must be exercised subject to all terms and conditions set forth in this Agreement, including the successful closing Closing of this Agreement pursuant to Article XI10 on the terms set forth herein. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be the Allocated Value of for such Asset, adjusted as set forth herein. (ib) All Assets burdened by Preferential Rights for which (A) the applicable If any Preferential Right has been waived, is validly exercised prior to Closing or (B) the period to exercise such a Preferential Right has expired is not exercised or waived prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions of this Agreement. (ii) If, prior to the Closing (A) any holder of a Preferential Right notifies SM Energy that it intends to consummate the purchase of the portion of the Assets to which its Preferential Right applies or (B) but the time for exercising a Preferential Right has not expired and the holder exercise or waiver of such Preferential Right has not waived such Preferential Rightyet expired, then, in each such case, such portion of (i) the Assets affected by such Preferential Right shall be excluded from the Assets to be conveyed to Buyer at Closing and the Unadjusted Purchase Price shall be reduced by the Allocated Value of the Assets affected by such excluded portion of the Assets. SM Energy Preferential Right, (ii) such Assets shall be entitled deemed to be deleted from Exhibit A (including any of Exhibit X-0, Xxxxxxx X-0, or Exhibit A-3, as applicable) and added to Schedule 1.1(a), and (iii) such Assets shall constitute Excluded Assets for all proceeds paid by a Person exercising purposes hereunder; provided, however, in the event that (A) the deadline for the exercise of a Preferential Right prior to the Closing. If, has expired after Closing and the holder thereof has not validly exercised such Preferential Right on or before the Cut-Off Date or (1B) such the holder of such Preferential Right thereafter validly exercises such Preferential Right prior to Closing but refuses or fails to consummate the purchase of such Assets on or before the portion Cut-Off Date, then in each such case (1) Seller shall promptly, but in any event within ten (10) Business Days thereof, convey the applicable Assets to Purchaser, (2) at the time of such conveyance, the Parties shall deliver all instruments and documents that would have been required under the terms hereof to be delivered at Closing with respect to such Assets, (3) Purchaser shall, simultaneously with the conveyance of the applicable Assets, pay the amount of any previous deduction from the Unadjusted Purchase Price (subject to all other applicable adjustments with respect to such Assets under Section 2.4) to Seller, and (4) such Assets shall no longer be deemed to be (x) deleted from Exhibit A (including any of Exhibit X-0, Xxxxxxx X-0, or Exhibit A-3, as applicable), (y) added to Schedule 1.1(a), or (z) Excluded Assets for any purposes hereunder. (c) Purchaser acknowledges that Seller desires to sell all of its Assets and would not have entered into this Agreement but for Purchaser’s agreement to purchase all of the Assets covered by such as herein provided. Accordingly, it is expressly understood and agreed that Seller does not desire to sell to any Person other than Purchaser any Assets subject to any Preferential Right or (2) unless the time for exercising such Preferential Right expires without exercise by the holder thereof, then SM Energy shall (x) so notify Buyer and (y) on or before 10 days following delivery sale of such notice, assign such portion all of the Assets is consummated by the Closing Date in accordance with the terms of this Agreement and the terms of the applicable Preferential Right. In furtherance of the foregoing, Seller’s obligation hereunder to Buyer sell its Assets subject to any Preferential Right to any Person other than Purchaser is expressly conditioned upon the consummation by the Closing Date of the sale of all of the Assets (other than Excluded Assets) in accordance with the terms of this Agreement, either by conveyance to Purchaser or conveyance pursuant to an assignment in substantially the form of the Assignment and the Purchase Price applicable Preferential Right; provided that, nothing herein is intended or shall be increased by an amount equal operate to the Allocated Value of the such extend or apply any Preferential Right to any portion of the Assetssuch Assets which is not otherwise burdened thereby.

Preferential Rights. SM Energy shall, within 10 days after the Execution Date, send ARCO will deliver or cause to each holder be delivered any notices to holders of a Preferential Right a notice requesting the election or waiver by each such holder of its applicable Preferential Right, preferential purchase rights that are required in each case in compliance connection with the contractual provisions applicable sale of the ATAI Shares and CIPC Shares (each, a "PREFERENTIAL RIGHT") (including any notices required due to the reactivation of Preferential Rights that may have previously lapsed), using as the relevant purchase price the portion of the Initial Pipeline Assets Purchase Price allocated to such Preferential Right, requesting a waiver Shares on Schedule 2.4(b) of such rightthe Disclosure Schedule (in the case of the ATAI Shares without regard to any adjustment for the Bonds). Any Preferential Right must be exercised subject to all terms and conditions set forth in this Agreement, including the successful closing of this Agreement pursuant to Article XI. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be the Allocated Value of such Asset. (i) All Assets burdened by Preferential Rights for which (A) the applicable Preferential Right has been waived, or (B) the period to exercise such Preferential Right has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions of this Agreement. (ii) If, prior to the Closing (A) any Second Closing, a holder of a Preferential Right notifies SM Energy ARCO that it intends elects to consummate exercise its rights with respect to the purchase Shares (or underlying Properties of the portion issuer of the Assets such Shares) to which its Preferential Right applies or relates (B) in accordance with and determined by the time for exercising a agreement creating the Preferential Right has not expired and Right), the holder Shares, the sale of such Preferential Right has not waived which is subject to such Preferential Right, thenshall not be sold, in each casetransferred, such portion of the Assets affected by such Preferential Right shall be excluded from the Assets assigned, conveyed or delivered to be conveyed to Buyer at Closing Purchaser and the Initial Pipeline Assets Purchase Price shall be reduced by the Allocated Value amount allocated to such Shares on Schedule 2.4(b); PROVIDED that, if the Second Closing shall have already occurred in accordance with Section 2.4(c) and thereafter for any reason the purchase and sale of the Shares (or underlying Properties of the issuer of such excluded portion Shares) subject to the Preferential Right is not or cannot be consummated with the holder of the Assets. SM Energy shall be entitled to all proceeds paid by a Person exercising a Preferential Right prior to the Closing. IfRight, ARCO will promptly notify Purchaser and, within ten Business Days after Closing (1) such holder of such Preferential Right thereafter fails to consummate the purchase of the portion of the Assets covered by such Preferential Right or (2) the time for exercising such Preferential Right expires without exercise by the holder thereof, then SM Energy shall (x) so notify Buyer and (y) on or before 10 days following delivery Purchaser's receipt of such notice, assign subject to receipt of any Necessary Consents, ARCO will sell, transfer, assign, convey and deliver to Purchaser, and Purchaser will purchase and accept from ARCO, such portion Shares in exchange for the amount allocated to such Shares on Schedule 2.4(b). Such purchase price shall be subject to adjustment based on the application of the Assets methodology set forth in Section 2.5 to Buyer pursuant to an assignment in substantially such Shares for the form period beginning as of the Assignment Effective Date and ending at the Purchase Price shall be increased by an amount equal to close of business on the Allocated Value day of the delivery and acceptance of such portion of Shares, or on such other basis as the Assetsparties may agree.

Preferential Rights. SM Energy shall, within 10 days after the Execution Date, send to each holder of a Preferential Right a notice requesting the election or waiver by each such holder of its applicable Preferential Right, in each case in compliance with the contractual provisions applicable to such Preferential Right, requesting a waiver of such right. (a) Any Preferential Right preferential purchase right must be exercised subject to all terms and conditions set forth in this Agreement, including the successful closing Closing of this Agreement pursuant to Article XI9, on the dates set forth herein. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right preferential purchase right notices shall be the Allocated Value of for such Asset, adjusted as set forth herein. (b) If any preferential right to purchase any Assets is validly exercised prior to Closing, then (i) All Assets burdened by Preferential Rights for which (A) the applicable Preferential Right has been waived, or (B) the period to exercise such Preferential Right has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions of this Agreement. (ii) If, prior to the Closing (A) any holder of a Preferential Right notifies SM Energy that it intends to consummate the purchase of the portion of the Assets to which its Preferential Right applies or (B) the time for exercising a Preferential Right has not expired and the holder of such Preferential Right has not waived such Preferential Right, then, in each case, such portion of the Assets affected by such Preferential Right shall be excluded from the Assets to be conveyed to Buyer at Closing and the Unadjusted Purchase Price shall be reduced by the Allocated Value of such excluded portion of the Assets. SM Energy Asset, (ii) such Assets shall be entitled deemed to be deleted from Exhibit A and added to Schedule 1.1(a), and (iii) such Assets shall constitute Excluded Assets for all proceeds paid by a Person exercising a Preferential Right purposes hereunder; provided, however, in the event the holder of any preferential right to purchase any Assets validly exercises such preferential right prior to the Closing. If, after Closing (1) such holder of such Preferential Right thereafter but refuses or fails to consummate the purchase of such Assets on or before the Cut-Off Date (or such later date as provided for under the instrument giving rise to such preferential right, as applicable), (A) Seller shall promptly convey the applicable Assets to Purchaser, (B) the Parties shall deliver all instruments and documents that would have been required under the terms hereof to be delivered at Closing with respect to such Assets, (C) Purchaser shall, simultaneously with the conveyance of the applicable Assets, pay the amount of any previous deduction from the Unadjusted Purchase Price (subject to all other applicable adjustments with respect to such Assets under Section 2.4) to Seller, and (D) such Assets shall no longer be deemed to be (1) deleted from Exhibit A, (2) added to Schedule 1.1(a), or (3) Excluded Assets for any purposes hereunder. (c) Should a Third Party fail to validly exercise or waive its preferential right to purchase as to any portion of the Assets covered by such Preferential Right or (2) prior to Closing, and the time for exercising exercise or waiver of such Preferential Right expires without exercise by the holder thereofpreferential right has not yet expired, then SM Energy shall (xi) so notify Buyer and (y) on or before 10 days following delivery of such notice, assign such portion of the Assets to Buyer pursuant to an assignment in substantially the form of the Assignment and the Unadjusted Purchase Price shall not be increased reduced by an amount equal to the Allocated Value of such Assets, (ii) such Assets shall be included in the Assets and conveyed by Seller to Purchaser at Closing, (iii) from and after Closing, Purchaser shall be entitled to all amounts payable by such holder in connection with such preferential right to purchase, and (iv) from and after Closing, Purchaser shall comply with, be responsible for and perform all obligations arising with or attributable to such preferential rights to purchase. (d) Purchaser acknowledges that Seller desires to sell all of its Assets and would not have entered into this Agreement but for Purchaser’s agreement to purchase all of the Assets as herein provided. Accordingly, it is expressly understood and agreed that Seller does not desire to sell to any Person other than Purchaser any Assets subject to any preferential right to purchase unless the sale of all of the Assets is consummated by the Closing Date in accordance with the terms of this Agreement and the terms of the applicable preferential right to purchase. In furtherance of the foregoing, Seller’s obligation hereunder to sell its Assets subject to any preferential right to purchase to any Person other than Purchaser is expressly conditioned upon the consummation by the Closing Date of the sale of all of the Assets (other than Excluded Assets) in accordance with the terms of this Agreement, either by conveyance to Purchaser or conveyance pursuant to an applicable preference right; provided that, nothing herein is intended or shall operate to extend or apply any preference right to any portion of the Assetssuch Assets which is not otherwise burdened thereby.

Preferential Rights. SM Energy shall, within 10 days after the Execution Date, send to each holder of a Preferential Right a notice requesting the election or waiver by each such holder of its applicable Preferential Right, in each case in compliance with the contractual provisions applicable to such Preferential Right, requesting a waiver of such right. (a) Any Preferential Right Rights must be exercised subject to all terms and conditions set forth in this Agreement, including the successful closing Closing of this Agreement pursuant to Article XI9 on the terms set forth herein. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right Rights notices shall be the Allocated Value of for such Asset, adjusted as set forth herein. (b) If any Preferential Right as to any Assets is validly exercised prior to Closing, then (i) All Assets burdened by Preferential Rights for which (A) the applicable Preferential Right has been waived, or (B) the period to exercise such Preferential Right has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions of this Agreement. (ii) If, prior to the Closing (A) any holder of a Preferential Right notifies SM Energy that it intends to consummate the purchase of the portion of the Assets to which its Preferential Right applies or (B) the time for exercising a Preferential Right has not expired and the holder of such Preferential Right has not waived such Preferential Right, then, in each case, such portion of the Assets affected by such Preferential Right shall be excluded from the Assets to be conveyed to Buyer at Closing and the Unadjusted Purchase Price shall be reduced by the Allocated Value of such excluded portion of the Assets. SM Energy Asset, (ii) such Assets shall be entitled deemed to be deleted from Exhibit A and added to Schedule 1.1(b), and (iii) such Assets shall constitute Excluded Assets for all proceeds paid by a Person exercising a purposes hereunder; provided, however, in the event the holder of any Preferential Right as to any Assets validly exercises such Preferential Right prior to the Closing. If, after Closing (1) such holder of such Preferential Right thereafter but refuses or fails to consummate the purchase of such Assets on or before the Cut-Off Date, (A) Seller shall promptly convey the applicable Assets to Purchaser, (B) the Parties shall deliver all instruments and documents that would have been required under the terms hereof to be delivered at Closing with respect to such Assets, (C) Purchaser shall, simultaneously with the conveyance of the applicable Assets, pay the amount of any previous deduction from the Unadjusted Purchase Price (subject to all other applicable adjustments with respect to such Assets under Section 2.4) to Seller, and (D) such Assets shall no longer be deemed to be (1) deleted from Exhibit A, (2) added to Schedule 1.1(b), or (3) Excluded Assets for any purposes hereunder. (c) Should a Third Party fail to validly exercise or waive its Preferential Right to purchase as to any portion of the Assets covered by prior to Closing, and the time for exercise or waiver of such Preferential Right or has not yet expired, then (2i) the time for exercising such Preferential Right expires without exercise by the holder thereof, then SM Energy shall (x) so notify Buyer and (y) on or before 10 days following delivery of such notice, assign such portion of the Assets to Buyer pursuant to an assignment in substantially the form of the Assignment and the Unadjusted Purchase Price shall be increased reduced by an amount equal to the Allocated Value of such Assets, (ii) such Assets shall be deemed to be deleted from Exhibit A and added to Schedule 1.1(b), (iii) such Assets shall constitute Excluded Assets for all purposes hereunder, (iv) from and after Closing, Seller shall be entitled to all amounts payable by such holder in connection with such Preferential Right, and (v) from and after Closing, Seller shall comply with, be responsible for and perform all obligations arising with or attributable to such Preferential Right provided, however, in the event the holder of any Preferential Right as to any Assets (X) validly exercises such Preferential Right after Closing but refuses or fails to consummate the purchase of such Assets on or before the Cut-Off Date or (Y) waives such Preferential Right after Closing but before the Cut-Off Date, (A) Seller shall promptly convey the applicable Assets to Purchaser, (B) the Parties shall deliver all instruments and documents that would have been required under the terms hereof to be delivered at Closing with respect to such Assets, (C) Purchaser shall, simultaneously with the conveyance of the applicable Assets, pay the amount of any previous deduction from the Unadjusted Purchase Price (subject to all other applicable adjustments with respect to such Assets under Section 2.4) to Seller, and (D) such Assets shall no longer be deemed to be (1) deleted from Exhibit A, (2) added to Schedule 1.1(b), or (3) Excluded Assets for any purposes hereunder. (d) Purchaser acknowledges that Seller desires to sell all of its Assets and would not have entered into this Agreement but for Purchaser’s agreement to purchase all of the Assets as herein provided. Accordingly, it is expressly understood and agreed that Xxxxxx does not desire to sell to any Person other than Purchaser any Assets subject to any Preferential Right unless the sale of all of the Assets is consummated by the Closing Date in accordance with the terms of this Agreement and the terms of the applicable Preferential Right to purchase. In furtherance of the foregoing, Seller’s obligation hereunder to sell its Assets subject to any Preferential Right to any Person other than Purchaser is expressly conditioned upon the consummation by the Closing Date of the sale of all of the Assets (other than Excluded Assets) in accordance with the terms of this Agreement, either by conveyance to Purchaser or conveyance pursuant to an applicable Preferential Right; provided that, nothing herein is intended or shall operate to extend or apply any Preferential Right to any portion of the Assetssuch Assets which is not otherwise burdened thereby.

Preferential Rights. SM Energy shall, within 10 days after Buyer and Seller recognize that the Execution Date, send to each holder of a Preferential Right a notice requesting the election or waiver by each such holder of its applicable Preferential Right, in each case in compliance with the contractual provisions applicable to such Preferential Right, requesting a waiver of such right. Any Preferential Right must Properties may be exercised subject to preferential purchase rights, rights of first refusal, consents to assign, lessor’s approvals, or similar rights (collectively, “preferential rights”). Seller is responsible for identifying the existence of all preferential rights, and shall be responsible for taking such steps as are necessary for soliciting all required approvals and consents relating to preferential rights. Seller shall exercise reasonable commercial diligence to notify all holders of preferential rights of Seller’s intention to sell the Properties affected thereby and of the corresponding Allocated Values. If any third party that elects to exercise a preferential purchase right fails to consummate the purchase of any Property covered by such right pursuant to the terms and conditions set forth in of this Agreement, including then Buyer shall purchase said Property from Seller under the successful closing terms of this Agreement pursuant for a price equal to Article XIthat portion of the Sale Price previously allocated to it. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be the Allocated Value of such Asset. (i) All Assets burdened by Preferential Rights properties for which (A) the applicable Preferential Right has preferential purchase rights have been waived, or (B) for which the period to exercise such Preferential Right rights has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential RightClosing, shall, in each case, shall be assigned sold to Buyer at the Closing pursuant to the provisions of this Agreement. (ii) If, . In any case where the parties have failed to obtain from any such preferential rights holder prior to Closing the Closing (A) any approval of or consent of such preferential rights holder of a Preferential Right notifies SM Energy that it intends to consummate the purchase of the portion of the Assets to which its Preferential Right applies or (B) transactions contemplated hereby, and the time for exercising a Preferential Right the exercise of such preferential rights has not expired expired, Buyer shall have the right, but not the obligation, to include in the Closing the Properties affected by such preferential rights. If Buyer does so, and the holder of the preferential rights validly exercises such Preferential Right has not waived such Preferential Rightpreferential rights after the Closing, then, in each case, such portion of the Assets affected by such Preferential Right shall be excluded Buyer will honor the preferential rights so exercised subject to its receipt from the Assets to be conveyed to Buyer at Closing and the Purchase Price shall be reduced by preferential rights holder of payment of the Allocated Value of such excluded portion of the Assets. SM Energy shall be entitled to all proceeds paid by a Person exercising a Preferential Right prior to the Closing. Ifeach affected Property, after Closing (1) such holder of such Preferential Right thereafter fails to consummate the purchase of the portion of the Assets covered by such Preferential Right or (2) the time for exercising such Preferential Right expires without exercise by the holder thereof, then SM Energy shall (x) so notify Buyer and (y) as set forth on or before 10 days following delivery of such notice, assign such portion of the Assets to Buyer pursuant to an assignment in substantially the form of the Assignment and the Purchase Price shall be increased by an amount equal to the Allocated Value of the such portion of the AssetsExhibit A-1 hereto.

Preferential Rights. SM Energy shall(a) With respect to each Preferential Right set forth on Schedule 6.10, Seller shall send, within 10 days after seven Business Days following the Execution Closing Date, send to each the holder of a Preferential Right a notice requesting the election or waiver by each such holder of its applicable Preferential Right, right a written notice in each case in material compliance with the contractual provisions applicable to such Preferential Right, requesting a waiver of such right. Any Seller may only sell the Preferential Right must be exercised subject Property to all the holder of the Preferential Right upon the same terms and conditions set forth in this Agreementherein, including the successful closing of this Agreement pursuant to Article XImutatis mutandis. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be the Allocated Value of such Asset. (i) All Assets burdened by Preferential Rights for which (A) the applicable Preferential Right has been waived, or (B) the period to exercise such Preferential Right has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions of this Agreement. (ii) If, prior to the Closing (A) any holder of a Preferential Right notifies SM Energy that it intends to consummate the purchase of the portion of the Assets to which its Preferential Right applies or (B) the time for exercising a Preferential Right has not expired and the holder of such Preferential Right has not waived such Preferential Right, then, in each case, such portion of the Assets affected by such Preferential Right Property shall be excluded from the Assets to be conveyed to Buyer at Closing transactions hereunder, and the Base Purchase Price shall be reduced by the Allocated Value of such the excluded portion Preferential Right Property. (b) If any holder of a Preferential Right notifies Seller that it intends to consummate the purchase of any part of the Assets. SM Energy Assets to which its Preferential Right applies (in such case, a “Preferential Right Property”), Seller shall be entitled to all proceeds paid by a Person exercising from the holder of a Preferential Right prior who exercises its right to purchase a Preferential Right Property. If the Closing. If, after Closing (1) such holder of such Preferential Right Property thereafter fails to consummate the purchase of the portion of the Assets Preferential Right Property covered by such Preferential Right or (2) the time for exercising right and such holders’ rights to purchase such Preferential Right expires without exercise by the holder thereofProperty have expired, then SM Energy Seller shall (x) so notify Buyer and (y) Buyer shall purchase, on or before 10 days Business Days following delivery receipt of such notice, assign such portion the Preferential Right Property under the terms of the Assets to Buyer pursuant to an assignment in substantially the form of the Assignment and the Purchase Price shall be increased by an amount this Agreement for a price equal to the Allocated Value of such Preferential Right Property. (c) To the extent any Preferential Right Property is purchased by Buyer following the Closing pursuant to Section 8.4(b) or (c) and such portion Preferential Right Property has not been included in determining the Adjustments to be made pursuant to Section 2.3, then the Adjustments that are specific to such Preferential Right Property shall be calculated and contemporaneous with the payment of the AssetsAllocated Value for such Preferential Right Property there shall be applied as a deduction to such Allocated Value (if the sum of the downward Adjustments exceeds the sum of the upward Adjustments) the net amount resulting from such Adjustments or there shall be applied as an addition to such Allocated Value (if the sum of the upward Adjustments exceeds the sum of the downward Adjustments) the net amount resulting from such Adjustments.

Preferential Rights. SM Energy shall, within 10 days (a) Within two (2) Business Days after the Execution DateSale Order is entered, send the Sellers shall deliver to each holder of a Preferential Right a notice requesting the election or waiver by each such holder of its applicable Preferential Right, that is in each case in material compliance with the contractual provisions applicable thereto, offering to sell to each such holder the applicable Assets subject to such Preferential Right, requesting a waiver Right in accordance with the terms of this Agreement and in exchange for an amount equal to the Allocated Value of such right. Any Preferential Right must be exercised subject to all terms and conditions Asset, adjusted as set forth in this Agreement, including or, alternatively, seeking such holder’s waiver of the successful closing of this Agreement pursuant to Article XI. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices applicable to the Assets which are subject to such Preferential Right; it being understood and agreed by the Parties that the Sellers shall not be obligated to make any payments or undertake obligations in connection with the Allocated Value obtaining of such Asset. (i) All Assets burdened by Preferential Rights for which (A) waivers. If, following the applicable Sale Order, Buyer discovers a Preferential Right has been waivedthat is not set forth on Schedule 4.9, or (B) Buyer may, at its option, provide a written notice to the period to exercise Sellers of such Preferential Right has expired prior Right, and the Sellers shall deliver a written notice as described in the immediately preceding sentence to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions of this Agreement. (iib) If, prior to as of the Closing (A) any Closing, a holder of a Preferential Right notifies SM Energy that it intends has elected to consummate the purchase of the portion of exercise its Preferential Right with respect to the Assets to which its Preferential Right applies or applies, then (Bi) the time for exercising a Preferential Right has not expired and the holder of such Preferential Right has not waived such Preferential Right, then, in each case, such portion of the Assets affected by such Preferential Right shall be excluded held back from the Assets conveyed at Closing, without reduction to the Purchase Price, (ii) such Assets shall thereafter be Excluded Assets (except as otherwise provided in the following sentence), and (iii) at Closing or the consummation of the purchase and sale of such Assets with the holder of such Preferential Right, whichever is later, if the Sellers receive any proceeds generated from the exercise of such Preferential Right, the Sellers shall pay (or shall cause such holder to pay) to Buyer all such proceeds. If for any reason after Closing, the purchase and sale of such Assets is not or cannot be consummated with the holder of such Preferential Right and the Sellers are permitted after Closing (including, without limitation, pursuant to the Sale Order) to transfer such Assets to Buyer pursuant to the terms of such Preferential Right, then the Assets affected by such Preferential Right will be conveyed to Buyer at a subsequent Closing to be held within ten (10) Business Days thereafter, at which subsequent closing the Sellers shall assign, transfer and convey to Buyer, and Buyer shall acquire and accept from the Purchase Price Sellers, such Assets pursuant to the terms of this Agreement. Notwithstanding the foregoing, nothing in this Section 7.2 shall be reduced by prevent the Allocated Value of such excluded portion of Sellers from ceasing operations or winding up its affairs following the Assets. SM Energy shall be entitled to all proceeds paid by a Person exercising a Closing. (c) All Assets for which any applicable Preferential Right prior (i) has been waived, (ii) as to which the Closing. If, after Closing (1) such holder of such period to exercise the applicable Preferential Right thereafter fails to consummate has expired without the purchase of the portion of the Assets covered by such Preferential Right exercise thereof, or (2iii) has not been exercised or waived and the time for exercising such Preferential Right expires without exercise by has not expired, in each case, prior to Closing shall be transferred to Buyer at Closing pursuant to the provisions of this Agreement. With respect to any Preferential Right described in Section 7.2(c)(iii) above, in the event the holder thereofthereof exercises such Preferential Right after Closing to consummate the purchase of the Asset(s) to which such Preferential Right applies, then SM Energy Buyer shall (x) so notify Buyer and (y) on or before 10 days following delivery comply with the terms of such noticePreferential Right and shall be entitled to, assign and such portion holder shall pay to Buyer, all of the proceeds generated from the exercise of such Preferential Right. (d) The provisions of this Section 7.2 shall only apply with respect to those Assets that are subject to Preferential Rights and that cannot be acquired by Buyer free and clear of such Preferential Rights pursuant to an assignment in substantially the form of Sale Order or the Assignment and the Purchase Price shall be increased by an amount equal to the Allocated Value of the such portion of the AssetsBankruptcy Code.

Preferential Rights. SM Energy shallSeller shall use commercially reasonable efforts to give the notices required in connection with the Preferential Rights and to obtain a waiver of all such Preferential Rights prior to Closing; provided, within 10 days after the Execution Datehowever, send that Seller shall not be obligated to each holder pay any consideration or waive or release any right or privilege in order to obtain a waiver of any Preferential Right. Any Assets that are subject to a Preferential Right a notice requesting the election or waiver by each such holder of its applicable Preferential Right, in each case in compliance with the contractual provisions applicable that is properly exercised prior to such Preferential Right, requesting a waiver of such right. Any Preferential Right must be exercised subject to all terms and conditions set forth in this Agreement, including the successful closing of this Agreement pursuant to Article XI. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices Closing shall be excluded from the Allocated Value of such Asset. (i) All Assets burdened conveyed by Preferential Rights for which (A) the applicable Preferential Right has been waived, or (B) the period to exercise such Preferential Right has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned Seller to Buyer at the Closing pursuant Closing, without any reduction to the provisions of this Agreement. (ii) If, prior to the Closing (A) any holder of Purchase Price with respect thereto. If a Preferential Right notifies SM Energy that it intends to consummate is not waived in writing by the purchase holder of the portion of the Assets to which its Preferential Right applies or (B) prior to Closing, and the time period for exercising a Preferential Right has not expired and the holder exercise of such Preferential Right has not waived expired prior to Closing, at Buyer’s election the Asset subject to such Preferential Right shall be included in the Assets conveyed by Seller to Buyer pursuant to this Agreement at Closing, without any reduction to the Purchase Price with respect thereto. (1) If Buyer elects to include any Asset subject to an outstanding Preferential Right in the Assets conveyed by Seller to Buyer at Closing, Seller shall use commercially reasonable efforts after Closing to assist Buyer in obtaining a waiver of the outstanding Preferential Right pertaining to such Asset; provided, however, that Seller shall not be obligated to pay any consideration or waive or release any right or privilege in order to obtain any such Preferential Right. If after Closing, thenany Preferential Right applicable to any Asset that was conveyed to Buyer at Closing is properly exercised, in each case, such portion of then the consideration paid to exercise the preferential right shall be paid to Buyer and Buyer shall assign the Assets affected by such Preferential Right shall be excluded from the Assets to be conveyed to Buyer at Closing and the Purchase Price shall be reduced by the Allocated Value of such excluded portion of the Assets. SM Energy shall be entitled to all proceeds paid by a Person exercising a Preferential Right prior to the Closing. If, after Closing (1) such holder of such Preferential Right thereafter fails to consummate the purchase of the portion of the Assets covered by such Preferential Right or (2) the time for exercising such Preferential Right expires without exercise by the holder thereof, then SM Energy shall (x) so notify Buyer and (y) on or before 10 days following delivery of such notice, assign such portion of the Assets to Buyer right pursuant to an assignment in substantially the same form of as Exhibit F. (2) In the Assignment and event a Preferential Right not listed on Schedule 4.2 is properly exercised prior to Closing, Buyer in its sole discretion, shall have the Purchase Price shall be increased by an amount equal right to the Allocated Value of the such portion of the Assetsterminate this Agreement.

Preferential Rights. SM Energy shall, within 10 ten (10) days after the Execution Date (or ten (10) days after discovery thereof if discovered after the Execution Date), send to each holder of a Preferential Right a notice requesting the election or waiver by each such holder of its applicable Preferential Right, in each case in material compliance with the contractual provisions applicable to such Preferential Right, requesting a waiver of such right. Any Preferential Right must be exercised subject to all terms and conditions set forth in this Agreement, including the successful closing Closing of this Agreement pursuant to Article ‎ARTICLE XI. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be the Allocated Value of such Asset. (i) All Assets burdened by Preferential Rights for which (A) the applicable Preferential Right has been waived, or (B) the period to exercise such Preferential Right has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions of this Agreement. (ii) If, prior to the Closing (A) any holder of a Preferential Right notifies SM Energy that it intends to consummate the purchase of the portion of the Assets (including any Contribution Asset excluded from the Contribution due to such Preferential Right) (all such Assets and Contribution Assets collectively, the “Affected Assets”) to which its Preferential Right applies or (B) the time for exercising a Preferential Right has not expired and the holder of such Preferential Right has not waived such Preferential Right, then, in each case, such portion of the Affected Assets affected by such Preferential Right shall be excluded from the Assets to be conveyed to Buyer at Closing and assigned by the Company back to SM Energy and the Purchase Price shall be reduced by the Allocated Value of such excluded portion of the Affected Assets. SM Energy shall be entitled to all proceeds paid by a Person exercising a Preferential Right prior to the Closing. If, after within eighty (80) days following the Closing (1) such holder of such Preferential Right thereafter fails to consummate the purchase of the portion of the Affected Assets covered by such Preferential Right or (2) the time for exercising such Preferential Right expires without exercise by the holder thereof, then SM Energy shall (x) so notify Buyer and (y) on or before 10 ten (10) days following delivery of such notice, assign such portion of the Affected Assets to Buyer pursuant to an assignment in substantially the a mutually agreed upon form of the Assignment assignment and xxxx of sale and the Purchase Price shall be increased by an amount equal to the Allocated Value of the such portion of the Affected Assets.

Preferential Rights. SM Energy shall, within 10 days after the Execution Date, send to each holder of a Preferential Right a notice notice, in form and substance reasonably acceptable to Buyer, requesting the election or waiver by each such holder of its applicable Preferential Right, in each case in material compliance with the contractual provisions applicable to such Preferential Right, Right requesting a the election or waiver of such right. Any Preferential Right must be exercised subject to all terms and conditions set forth in this Agreement, including the successful closing of this Agreement pursuant to Article XI. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be the Allocated Value of such Asset. For the avoidance of doubt, the Preferential Right set forth in the Letter Agreement applies to an undivided 25% interest in the Assets, and no less. (i) All Assets burdened by Preferential Rights for which (A) the applicable Preferential Right has been waivedwaived in writing prior to Closing, or (B) the period to exercise such Preferential Right has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce exercise its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions of this Agreement. (ii) If, prior to the Closing (A) any holder of a Preferential Right notifies SM Energy that it intends to consummate the purchase of the portion of the Assets to which its Preferential Right applies or (B) the time for exercising a Preferential Right has not expired and the holder of such Preferential Right has not waived in writing such Preferential Right, then, in each case, such portion of the Assets affected by such Preferential Right shall be excluded from the Assets to be conveyed to Buyer at Closing and the Purchase Price shall be reduced by the Allocated Value of such excluded portion of the Assets. SM Energy shall be entitled to all proceeds paid by a Person exercising a Preferential Right prior to the Closing. If, within 120 days after Closing (1) such holder of such Preferential Right thereafter fails to consummate the purchase of the portion of the Assets covered by such Preferential Right or (2) the time for exercising such Preferential Right expires without exercise by the holder thereof, then SM Energy shall (x) so notify Buyer in writing and (y) on or before 10 days following delivery of such written notice, assign such portion of the Assets to Buyer pursuant to an assignment in substantially the form of the Assignment and the Purchase Price shall be increased by an amount equal to the Allocated Value of the such portion of the Assets, subject to the applicable adjustments set forth in this Agreement. (iii) Notwithstanding the foregoing, if Buyer asserts that the condition in Section 9.1(e) has not been satisfied due, in whole or in part, to any Preferential Right and the holder of such Preferential Right has not consummated the purchase of the portion of the Assets covered by such Preferential Right as of the Outside Termination Date, then notwithstanding anything to the contrary set forth in Section 12.1(b), the Outside Termination Date shall be extended until five (5) Business Days after such time as either (x) the condition in Section 9.1(e) has been satisfied or waived by Buyer in writing in Buyer’s sole discretion or (y) the holder of such Preferential Right consummates the purchase of the portion of Assets covered by such Preferential Right; provided, however, in no event will the Outside Termination Date be extended pursuant to this Section 6.4(c)(iii) beyond June 25, 2018. For the avoidance of doubt and notwithstanding anything herein to the contrary (including the immediately preceding sentence), (A) in the event that Buyer asserts that the condition in Section 9.1(e) has not been satisfied due, in whole or in part, to any Preferential Right and the holder of a Preferential Right exercises such Preferential Right but does not consummate the purchase of the portion of the Assets covered by such Preferential Right as of the Scheduled Closing Date or the Outside Termination Date, then the condition in Section 9.1(e) will not be deemed satisfied unless, as of the Scheduled Closing Date or the Outside Termination Date, as applicable, (x) the holder of such Preferential Right executes and delivers a document acknowledging that it waives such Preferential Right in form and substance reasonably acceptable to Buyer or (y) SM Energy obtains a final, non-appealable binding judicial determination that such holder is not entitled to or has waived such Preferential Right, and (B) in the event the holder of such Preferential Right consummates the purchase of the portion of Assets covered by such Preferential Right and as a result of such purchase the condition in Section 9.1(e) is not satisfied, then Buyer may elect to terminate this Agreement pursuant to Section 12.1(b) so long as Buyer has not breached this Agreement in a manner that causes any of the conditions of SM Energy in Section 9.2 not to be satisfied.

Preferential Rights. SM Energy shall(a) After the date hereof, within 10 days Seller shall promptly, but in no event later than five (5) Business Days after the Execution Datedate hereof, send notify all holders of preferential rights to each holder purchase all or any portion of a the Purchased Assets (“Preferential Right a notice requesting the election or waiver by each such holder Rights”) of its applicable Preferential Right, in each case in compliance with the contractual provisions applicable to such Preferential Right, requesting a waiver of such right. Any Preferential Right must be exercised subject to all terms and conditions set forth in this Agreement, including the successful closing of this Agreement pursuant to Article XI. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be the Allocated Value of such Asset. (i) All Assets burdened by Preferential Rights for which (A) the applicable Preferential Right has been waived, or (B) the period to exercise such Preferential Right has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions their rights as result of this Agreement. (iib) IfIn the event that any holder of Preferential Right exercises such Preferential Right prior to the Closing, the Purchased Assets subject to such Preferential Right (as well as all other Purchased Assets as may be reasonably necessary to effect the exclusion of the affected Purchased Asset due to any uniformity of interest provisions, unit agreements or other contractual or operational restrictions on the transfer of such affected Purchased Asset) shall be excluded and deleted from this Agreement, the Base Purchase Price shall be reduced by an amount equal to the aggregate Allocated Values of such affected Purchased Assets and, subject to Sections 7.2 and 7.3, the Closing shall occur as to the remainder of the Purchased Assets (or interests therein), if any. (c) In the event that any holder of Preferential Right fails to exercise such Preferential Right prior to the Closing (A) any holder of a Preferential Right notifies SM Energy that it intends to consummate the purchase of the portion of the Assets to which its Preferential Right applies or (B) and the time period for exercising a Preferential Right has not expired and the holder exercise or waiver of such Preferential Right has not waived such Preferential Rightyet expired, then, in each case, such portion of the Purchased Assets affected by subject to such Preferential Right and all other Purchased Assets as may be reasonably necessary to effect the exclusion of the affected Purchased Asset due to any uniformity of interest provisions, unit agreements or other contractual or operational restrictions on the transfer of such affected Purchased Asset shall be excluded from the Assets to be conveyed to Buyer at Closing retained by Seller and the Base Purchase Price shall be reduced by an amount equal to the aggregate Allocated Value Values of such excluded portion Purchased Assets, and, subject to Sections 7.2 and 7.3, the Closing shall occur as to the remainder of the Assets. SM Energy shall be entitled to all proceeds paid by a Person exercising a Preferential Right prior Purchased Assets (or interests therein), if any. (d) If, subsequent to the Closing. If, after Closing (1) such holder of such any Preferential Right thereafter fails to consummate the purchase of the portion of the Assets covered by such Preferential Right is waived, or (2) if the time period otherwise set forth for exercising such Preferential Right expires without exercise by expires, in either case prior to the holder thereof, then SM Energy shall (x) so notify Buyer and (y) on or before 10 days following delivery of such notice, assign such portion expiration of the Assets to Post-Closing Period, Seller and Buyer shall effect a Closing pursuant to an assignment in substantially the form of the Assignment Article 7 (and the Purchase Price other terms and conditions herein) with respect to, and Seller shall be increased by transfer to Buyer, the Purchased Assets (or interests therein) subject to such Preferential Right, and Buyer shall pay to Seller an amount equal to the aggregate Allocated Value Values of the such portion of the Purchased Assets.

Preferential Rights. SM Energy shall(i) After Closing, within 10 days after if the Execution Date, send holder of any Preferential Right with respect to each holder which any portion of the Property affected by the exercise of a Preferential Right a notice requesting was excluded from the election or waiver by each such holder of its applicable Preferential Right, in each case in compliance with the contractual provisions applicable Property to such Preferential Right, requesting a waiver of such right. Any Preferential Right must be exercised subject to all terms and conditions set forth in this Agreement, including the successful closing of this Agreement pursuant to Article XI. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be the Allocated Value of such Asset. (i) All Assets burdened by Preferential Rights for which (A) the applicable Preferential Right has been waived, or (B) the period to exercise such Preferential Right has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer ASSIGNEE at the Closing pursuant to the provisions of this Agreement. (ii) If, prior to the Closing (A) any holder of a Preferential Right notifies SM Energy that it intends fails to consummate the purchase acquisition of the portion of the Assets to which its Preferential Right applies or (B) Property burdened by the time for exercising a Preferential Right has not expired and the holder exercise of such Preferential Right has not waived such Preferential Right, then, in each case, such portion of on or before the Assets affected by such Preferential Right shall be excluded from the Assets to be conveyed to Buyer at Closing and the Purchase Price shall be reduced by the Allocated Value of such excluded portion of the Assets. SM Energy shall be entitled to all proceeds paid by a Person exercising a Preferential Right prior to the Closing. If, after Closing (1) such holder of such Preferential Right thereafter fails to consummate the purchase of the portion of the Assets covered by such Preferential Right Final Settlement Date or (2) the time for exercising such Preferential Right expires without exercise of by the holder thereof, then SM Energy (A) ASSIGNOR shall (x) so notify Buyer and ASSIGNEE, (yB) ASSIGNOR shall assign, on or before 10 days the tenth business day following delivery receipt of such noticenotice or the termination of such right without exercise, assign such portion of the Assets Property that was so excluded to Buyer ASSIGNEE effective as of the Effective Time pursuant to an assignment instrument in substantially the same form of as the Assignment and (C) ASSIGNEE shall pay to ASSIGNOR the amount by which the Purchase Price shall be increased by an amount equal was reduced at Closing with respect to the Allocated Value of the such excluded portion of the AssetsProperty (as adjusted in accordance with Section 2.2 through the date of such conveyance). (ii) After Closing, if (A) any holder of Preferential Rights has alleged or alleges improper notice of sale, (B) ASSIGNOR or ASSIGNEE discovers, or any third party alleges, the existence of additional Preferential Rights, or (C) the time period for exercise of any Preferential Right did not expire before Closing, ASSIGNOR and ASSIGNEE will attempt to obtain waivers of those Preferential Rights. If ASSIGNOR and ASSIGNEE are unable to obtain waivers of such Preferential Rights, and such Preferential Rights are not deemed waived, or the third party ultimately establishes and exercises its rights, then ASSIGNEE shall satisfy all such Preferential Rights obligations. ASSIGNEE shall be entitled to receive (and ASSIGNOR hereby assigns to ASSIGNEE all of ASSIGNOR’s rights to) all proceeds to be received by ASSIGNOR from such third party, in connection with the sale, due to an exercise of Preferential Rights, of any portion of the Property ASSIGNEE was to receive under this Agreement.

Preferential Rights. SM Energy shall(i) With respect to each Preferential Right pertaining to an Asset and the transactions contemplated hereby, SM, within 10 days after the Execution Date, shall send to each the holder of a each such Preferential Right a notice requesting the election or waiver by each such holder of its applicable Preferential Rightnotice, in each case in material compliance with the contractual provisions applicable to such Preferential Right, requesting a waiver of such right. Any Preferential Right must be exercised subject to all terms and conditions set forth in this Agreement, including the successful closing of this Agreement pursuant to Article XI. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be the Allocated Value of such Asset. (iii) All Assets burdened by Preferential Rights for which (A) the applicable Preferential Right has been waived, or (B) the period to exercise such Preferential Right has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer Buyers at the Closing pursuant to the provisions of this Agreement. (iiiii) If, prior to the Closing (A) any holder of a Preferential Right notifies SM Energy that it intends to consummate the purchase of the portion of the Assets to which its Preferential Right applies or (B) the time for exercising a Preferential Right has not expired and the holder of such Preferential Right has not waived such Preferential Right, then, in each case, such portion of the Assets affected by such Preferential Right shall be excluded from the Assets to be conveyed to Buyer Buyers at Closing and the Purchase Price shall be reduced by the Allocated Value of such excluded portion of the Assets. SM Energy shall be entitled to all proceeds paid by a Person exercising a Preferential Right prior to the Closing. If, after Closing (1) such holder of such Preferential Right thereafter fails to consummate the purchase of the portion of the Assets covered by such Preferential Right or (2) the time for exercising such Preferential Right expires without exercise by the holder thereof, then SM Energy shall (x) so notify Buyer Buyers and (y) on or before 10 days following delivery of such notice, assign such portion of the Assets to Buyer Buyers pursuant to an assignment in substantially the form of the Assignment and the Purchase Price shall be increased by an amount equal to the Allocated Value of the such portion of the Assets.

Preferential Rights. SM Energy shall, within 10 days (a) Promptly after the Execution Date, the Sellers shall prepare and send notices to each holder the holders of a Preferential Right a notice requesting any preferential rights to purchase any of the election Assets or waiver by each such holder of its applicable Preferential Right, in each case similar rights that are set forth on Schedule 5.9 in compliance with the contractual provisions applicable to such Preferential Right, requesting a waiver terms of such right. Any Preferential Right must be exercised subject to all terms rights and conditions set forth in this Agreement, including the successful closing requesting waivers of this Agreement pursuant to Article XIsuch rights. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be the Allocated Value Per Acre Price for such Asset. Sellers shall used commercially reasonable efforts to cause such waivers of preferential rights to purchase or other similar rights (or the exercise thereof) to be obtained and delivered prior to Closing. (b) If any preferential right to purchase any Asset is exercised prior to Closing, then the Purchase Price shall be decreased by the Per Acre Price of such Asset. (i) All Assets burdened by Preferential Rights for which (A) , the applicable Preferential Right has been waived, or (B) affected Asset shall not be transferred at Closing and the period affected Asset shall be deemed to exercise such Preferential Right has expired prior be deleted from Exhibit A to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions of this Agreement. (iic) If, prior Should a third person fail to the Closing (A) exercise or waive its preferential right to purchase any holder of a Preferential Right notifies SM Energy that it intends to consummate the purchase of the portion of the Assets prior to which its Preferential Right applies or (B) Closing and the time for exercising a Preferential Right exercise or waiver has not expired and the holder of such Preferential Right has not waived such Preferential Rightyet expired, then, in each case, such portion of the Assets affected by such Preferential Right shall be excluded from the Assets to be conveyed to Buyer at Closing and then the Purchase Price shall be reduced decreased by the Allocated Value Per Acre Price of such excluded portion of Asset and the Assets. SM Energy affected Asset shall not be entitled to all proceeds paid by a Person exercising a Preferential Right prior to the transferred at Closing. IfFollowing Closing, after Closing if (1i) such holder of third person waives such Preferential Right thereafter preferential right or (ii) fails to consummate the purchase of the portion of the Assets covered by exercise such Preferential Right or (2) preferential right within the time for exercising period that such Preferential Right expires without third person must exercise by such preferential right in accordance with the holder thereofapplicable contract establishing such preferential right, then SM Energy the Sellers shall (x) so notify Buyer and (y) on or before 10 days following delivery of such notice, assign such portion of the Assets applicable Asset to Buyer pursuant to an assignment in substantially the form of the Assignment a timely manner and the Purchase Price shall be increased by an amount equal the Per Acre Price of such Asset; provided that, if neither item (i) or (ii) occurs within six months following Closing, then Buyer shall have the option to not accept such Asset and to terminate its purchase of such Asset upon written notice to the Allocated Value of Sellers, in which case the such portion of the Assetsaffected Asset shall be deemed to be deleted from Exhibit A to this Agreement.

Preferential Rights. SM Energy shallIf any of the Subject Interests are burdened with preferential purchase rights, within 10 days after the Execution Date, send to each holder assignment of a Preferential Right a notice requesting the election or waiver by each such holder of its applicable Preferential Right, in each case in compliance with the contractual provisions applicable Subject Interests subject to such Preferential Right, requesting a preferential rights shall be conditioned upon Seller obtaining the necessary waiver or expiration of such right. Any Preferential Right must be exercised subject to all terms ; and conditions set forth in this Agreement, including the successful closing of this Agreement pursuant to Article XIshall not constitute an assignment or attempted assignment thereof without such waiver or expiration. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be the Allocated Value of such Asset. (i) All Assets burdened by Preferential Rights for which (A) the applicable Preferential Right has been waived, or (B) the period to exercise such Preferential Right has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions of this Agreement. (ii) If, prior to the Closing (A) any holder of a Preferential Right notifies SM Energy that it intends to consummate the purchase of the portion of the Assets to which its Preferential Right applies or (B) If the time for exercising a Preferential Right any preferential purchase right has not expired and the holder of such Preferential Right thereof has not waived such Preferential Rightthe same prior to the Closing Date, thenthe parties shall postpone Closing until that date which is five (5) Business Days after the date on which the rights have expired or on which notice of waiver has been received. If, in each caseprior to Closing, such portion a holder of a preferential purchase right notifies Seller that it intends to exercise its rights with respect to any of the Assets affected Subject Interests to which its preferential purchase right applies, the Subject Interests covered by such Preferential Right said preferential purchase right shall be excluded from the Assets Subject Interests to be conveyed to Buyer at Closing Buyer, and the Purchase Price shall be reduced by the Allocated Value of such excluded portion value allocated to said Subject Interests by Buyer in accordance with Section 3.3. If the holder of the Assets. SM Energy shall be entitled to all proceeds paid by a Person exercising a Preferential Right prior to the Closing. If, after Closing (1) such holder of such Preferential Right thereafter preferential purchase right fails to consummate the purchase of the portion Subject Interests that are the subject of the Assets covered any notice of an intent to exercise such right received by such Preferential Right Seller before or (2) the time for exercising such Preferential Right expires without exercise by the holder thereofafter Closing, then SM Energy Seller shall (x) so promptly notify Buyer and in writing. In such event, the Closing Date shall be extended to the first Business Day following the sixtieth (y60th) on or before 10 days following delivery of day after Seller gives Buyer such notice, assign at which xxxx Xxxxxx shall sell to Buyer, and Buyer shall purchase from Seller, such portion Subject Interests under the terms of the Assets to Buyer pursuant to an assignment in substantially the form of the Assignment and the Purchase Price shall be increased by an amount this Agreement for a price equal to the Allocated Value of aforesaid value allocated to such Subject Interests. Notwithstanding the foregoing, Buyer shall have no obligation to purchase such portion of the AssetsSubject Interests if Buyer does not receive such notice within ninety (90) Days after August 15, 2008.

Preferential Rights. SM Energy shall(a) After the date hereof, within 10 days after Sellers shall promptly notify all holders of preferential rights to purchase all or any portion of the Execution Date, send to each holder Purchased Assets (“Preferential Rights”) of a Preferential Right a notice requesting the election or waiver by each such holder of its applicable Preferential Right, in each case in compliance with the contractual provisions applicable to such Preferential Right, requesting a waiver of such right. Any Preferential Right must be exercised subject to all terms and conditions set forth in this Agreement, including the successful closing of this Agreement pursuant to Article XI. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be the Allocated Value of such Asset. (i) All Assets burdened by Preferential Rights for which (A) the applicable Preferential Right has been waived, or (B) the period to exercise such Preferential Right has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions their rights as result of this Agreement. (iib) IfIn the event that any holder of Preferential Right exercises such Preferential Right prior to the Closing, the Purchased Assets subject to such Preferential Right (as well as all other Purchased Assets as may be reasonably necessary to effect the exclusion of the affected Purchased Asset due to any uniformity of interest provisions, unit agreements or other contractual or operational restrictions on the transfer of such affected Purchased Asset) shall be excluded and deleted from this Agreement, the Base Purchase Price shall be reduced by an amount equal to the aggregate Allocated Values of such affected Purchased Assets and, subject to Sections 7.2 and 7.3, the Closing shall occur as to the remainder of the Purchased Assets (or interests therein), if any. (c) In the event that any holder of Preferential Right fails to exercise such Preferential Right prior to the Closing (A) any holder of a Preferential Right notifies SM Energy that it intends to consummate the purchase of the portion of the Assets to which its Preferential Right applies or (B) and the time period for exercising a Preferential Right has not expired and the holder exercise or waiver of such Preferential Right has not waived such Preferential Rightyet expired, then, in each case, such portion of the Purchased Assets affected by subject to such Preferential Right and all other Purchased Assets as may be reasonably necessary to effect the exclusion of the affected Purchased Asset due to any uniformity of interest provisions, unit agreements or other contractual or operational restrictions on the transfer of such affected Purchased Asset shall be excluded from the Assets to be conveyed to Buyer at Closing retained by Sellers and the Base Purchase Price shall be reduced by an amount equal to the aggregate Allocated Value Values of such excluded portion Purchased Assets, and, subject to Sections 7.2 and 7.3, the Closing shall occur as to the remainder of the Assets. SM Energy shall be entitled to all proceeds paid by a Person exercising a Preferential Right prior Purchased Assets (or interests therein). (d) If, subsequent to the Closing. If, after Closing (1) such holder of such any Preferential Right thereafter fails to consummate the purchase of the portion of the Assets covered by such Preferential Right is waived, or (2) if the time period otherwise set forth for exercising such Preferential Right expires without exercise by expires, in either case prior to the holder thereofday prior to final settlement required in accordance with Section 3.4, then SM Energy Sellers and Buyer shall (x) so notify Buyer and (y) on or before 10 days following delivery of such notice, assign such portion of the Assets to Buyer effect a Closing pursuant to an assignment in substantially the form of the Assignment Article 7 (and the Purchase Price other terms and conditions herein) with respect to, and Sellers shall be increased by transfer to Buyer, the Purchased Assets (or interests therein) subject to such Preferential Right, and Buyer shall pay to Sellers an amount equal to the aggregate Allocated Value Values of the such portion of the Purchased Assets.

Preferential Rights. SM Energy shallSellers will use commercial reasonable efforts, within 10 consistent with industry practices in transactions of this type, to identify, with respect to all material oil and gas Properties, the names and current addresses of parties holding Preferential Rights that are identified on Exhibit 4.1(g). In attempting to identify the names and addresses of such parties holding the same, Sellers shall in no event be obligated to go beyond its own records. Within five (5) days after of the Execution Dateexecution of this Agreement, send Sellers will request, from the parties so identified (and in accordance with the documents creating such rights), waivers of Preferential Rights. Sellers shall provide Buyer with copies of such requests and of all responses and other correspondence related thereto. Sellers shall have no obligation other than to each holder so attempt to identify the holders of such Preferential Rights and to so request such execution of such waivers of Preferential Rights (including, without limitation, any obligation on the part of Sellers to assure that such waivers of Preferential Rights are obtained). Except to the extent that Buyer can establish that any Seller failed to fulfill the obligations set forth above in this Section, Buyer shall release and waive any claims against or remedies from the Seller Indemnitees as to any claims, actions, causes of action, liabilities, damages, losses, costs or expenses (including, without limitation, court costs and attorney’s fees) whatsoever that arise out of the failure to obtain waivers of Preferential Rights with respect to any transfer by Sellers to Buyer of any part of the Properties and with respect to any subsequent transfers WHETHER OR NOT SUCH CLAIMS, ACTIONS, CAUSES OF ACTION, LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISE OUT OF NEGLIGENCE (INCLUDING SOLE NEGLIGENCE, SIMPLE NEGLIGENCE, CONCURRENT NEGLIGENCE, ACTIVE OR PASSIVE NEGLIGENCE, BUT EXPRESSLY NOT INCLUDING GROSS NEGLIGENCE OR WILLFUL MISCONDUCT) OF ANY INDEMNIFIED PARTY. If a party from whom a waiver of a Preferential Right a notice requesting the election or waiver by each such holder of its applicable Preferential Right, in each case in compliance with the contractual provisions applicable to is requested exercises such Preferential Right, requesting Sellers (as applicable) will tender to such party the required interest in the Property (at a waiver of such right. Any Preferential Right price equal to the Allocated Amount, reduced appropriately, if less than the entire Property must be exercised subject to all terms and conditions set forth in this Agreementtendered), including the successful closing of this Agreement pursuant to Article XI. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be the Allocated Value of such Asset. (i) All Assets burdened by Preferential Rights for which (A) the applicable Preferential Right has been waived, or (B) the period to exercise such Preferential Right has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions of this Agreement. (ii) If, prior to the Closing (A) any holder of a Preferential Right notifies SM Energy that it intends to consummate the purchase of the portion of the Assets to which its Preferential Right applies or (B) the time for exercising a Preferential Right has not expired and the holder of interest in such Preferential Right has not waived such Preferential Right, then, in each case, such portion of the Assets affected by such Preferential Right shall Property will be excluded from the Assets transaction contemplated hereby and the unadjusted Purchase Price will be adjusted downward by the amount actually paid to Sellers by the party exercising such right. If a third party from which a waiver was requested by Sellers has not elected to exercise or waive such Preferential Right prior to Closing and the time in which the preferential right to purchase may be exercised has not expired, any such Property shall be retained by the Seller and shall not be conveyed to the Buyer at Closing and the Purchase Price shall be reduced adjusted downward by the Allocated Value of such excluded portion Amount of the AssetsProperty. SM Energy shall be entitled to all proceeds paid Any Property so retained by a Person exercising Seller and held back at the initial Closing will be conveyed to Buyer, in accordance with the terms hereof, at a Preferential Right prior to delayed Closing within ten (10) Business Days following the Closing. If, after Closing (1) such holder of such Preferential Right thereafter fails to consummate the purchase of the portion of the Assets covered by such Preferential Right or (2) date on which the time for exercising to exercise such Preferential Right expires without any exercise by the holder thereof, then SM Energy shall or when Seller obtains, complies with, or obtains a waiver of or notice of election not to exercise or otherwise satisfies the Preferential Right with respect to any such Property. In the event a Seller is unable to obtain a waiver, notice of election not to exercise, or is unable to satisfy the Preferential Right within twelve (x12) so notify Buyer and (y) on or before 10 days following delivery of such noticemonths after the Closing, assign such portion of unless waived by Buyer, the Assets to Buyer pursuant to an assignment in substantially the form of the Assignment and the Purchase Price retained Property shall be increased by deemed an amount equal to the Allocated Value of the such portion of the AssetsExcluded Property.

Preferential Rights. SM Energy shall(A) With respect to preferential rights of third parties to purchase all or any portion of the Assets (“Preferential Rights”), within 10 days Seller agrees that promptly after the Execution DateParties’ execution of this Agreement, send it will request a waiver of Preferential Rights from each holder thereof identified by Seller (which request shall be subject to each Buyer’s prior review). (B) If the holder of a Preferential Right a notice requesting the election or waiver by each exercises such holder of its applicable Preferential Rightright, in each case in compliance with the contractual provisions applicable (i) Seller shall tender to such Preferential Rightparty the required interest in the affected Asset at a price equal to the Allocated Value thereof, requesting a waiver of (ii) such right. Any Preferential Right must interest in the Asset will be exercised subject to all terms deemed an Excluded Asset and conditions set forth in this Agreement, including the successful closing of this Agreement pursuant to Article XI. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be excluded from the transaction contemplated hereby, and (iii) the Base Purchase Price will be adjusted downward by the Allocated Value of such Asset. (iC) All Assets burdened If for any reason, other than Seller’s breach, the sale of an Asset covered by an exercised Preferential Rights Right is not consummated with the holder of the Preferential Right, Seller shall so notify Buyer promptly, but no later than sixty (60) days after the Closing Date, and within ten (10) business days after Buyer’s receipt of such notice, Seller shall sell, assign and convey to Buyer, and Buyer shall purchase and accept from Seller, such Asset pursuant to the terms of this Agreement and for the Allocated Value thereof. (D) If, on the date on which (A) the applicable Closing is scheduled to occur, the holder of a Preferential Right has been waivednot indicated whether or not it will exercise such Preferential Right and the time period within which the holder of the Preferential Right must exercise its right has not expired, or then the Closing date shall be deferred until five (B5) business days after the time period to exercise such Preferential Right has expired prior to the Closing elapsed without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions of this Agreementbeing exercised. (ii) If, prior to the Closing (A) any holder of a Preferential Right notifies SM Energy that it intends to consummate the purchase of the portion of the Assets to which its Preferential Right applies or (B) the time for exercising a Preferential Right has not expired and the holder of such Preferential Right has not waived such Preferential Right, then, in each case, such portion of the Assets affected by such Preferential Right shall be excluded from the Assets to be conveyed to Buyer at Closing and the Purchase Price shall be reduced by the Allocated Value of such excluded portion of the Assets. SM Energy shall be entitled to all proceeds paid by a Person exercising a Preferential Right prior to the Closing. If, after Closing (1) such holder of such Preferential Right thereafter fails to consummate the purchase of the portion of the Assets covered by such Preferential Right or (2) the time for exercising such Preferential Right expires without exercise by the holder thereof, then SM Energy shall (x) so notify Buyer and (y) on or before 10 days following delivery of such notice, assign such portion of the Assets to Buyer pursuant to an assignment in substantially the form of the Assignment and the Purchase Price shall be increased by an amount equal to the Allocated Value of the such portion of the Assets.

Preferential Rights. SM Energy shall, within 10 days No sooner than five Business Days but no later than ten Business Days after the Execution Date, send to each holder Seller shall give notices required in connection with all (i) preferential purchase rights, rights of a Preferential Right a notice requesting the election first refusal or waiver by each such holder other similar rights and (ii) rights of its applicable Preferential Rightfirst offer, tag-along rights, drag-along rights or other similar rights, in each case in compliance with the contractual provisions applicable to such Preferential Right, requesting a waiver of such right. Any Preferential Right must be exercised subject to all terms and conditions set forth in this Agreement, including the successful closing of this Agreement pursuant to Article XI. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be the Allocated Value of such Asset. clause (i) All and (ii) above, that are applicable to the transfer of the Assets burdened by in connection with the Transaction (collectively, “Preferential Rights for which (A) the applicable Rights”). If any Preferential Right has been waived, or (B) the period to exercise such Preferential Right has expired is exercised prior to the Closing without Date, then the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions of this Agreement. (ii) If, prior to the Closing (A) any holder of a Preferential Right notifies SM Energy that it intends to consummate the purchase of the portion of the Assets to which its Preferential Right applies or (B) the time for exercising a Preferential Right has not expired and the holder of such Preferential Right has not waived such Preferential Right, then, in each case, such portion of the Assets affected by such Preferential Right Affected Asset shall be excluded from the Assets to be conveyed to Buyer at Closing transferred hereunder as a Retained Asset and the Purchase Price shall be reduced by the Allocated Value of such excluded portion of the Assets. SM Energy shall be entitled to all proceeds paid by a Person exercising a Preferential Right prior to the Closing. If, after Closing (1) such holder of such Preferential Right thereafter fails to consummate the purchase of the portion of the Assets covered by such Preferential Right or (2) the time for exercising such Preferential Right expires without exercise by the holder thereof, then SM Energy shall (x) so notify Buyer and (y) on or before 10 days following delivery of such notice, assign such portion of the Assets to Buyer pursuant to an assignment in substantially the form of the Assignment and the Purchase Price shall be increased adjusted downward by an amount equal to the Allocated Value of such Affected Asset. If by Closing, either (A) the such portion time frame for the exercise of a Preferential Right has not expired and Seller has not received notice of an intent not to exercise or a waiver of the AssetsPreferential Rights, or (B) a Third Party exercises its Preferential Right, but fails to consummate the purchase prior to the Closing, then Seller shall retain the Affected Asset as a Retained Asset and the Purchase Price shall be adjusted downward by an amount equal to the Allocated Value of such Affected Asset. As to any Affected Assets retained by Seller hereunder, following Closing and prior to the Final Settlement Date if a Preferential Right is not consummated within the time frame specified in the Preferential Right, or if the time frame for exercise of the Preferential Right expires without exercise after the Closing, Seller shall promptly convey the Affected Asset to Buyer effective as of the Effective Time, and Buyer shall pay to Seller the Allocated Value thereof pursuant to the terms of this Agreement.

Preferential Rights. SM Energy Sellers shall, within 10 days after the Execution Date, send to each holder of a Preferential Right a notice requesting the election or waiver by each such holder of its applicable Preferential Right, in each case in material compliance with the contractual provisions applicable to such Preferential Right, requesting a waiver of such right. Any Preferential Right must be exercised subject to all terms and conditions set forth in this Agreement, including the successful closing of this Agreement pursuant to Article XI. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be the Allocated Value of such Asset. (i) All Assets burdened by Preferential Rights for which (A) the applicable Preferential Right has been waived, or (B) the period to exercise such Preferential Right has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions of this Agreement. (ii) If, prior to the Closing (A) any holder of a Preferential Right notifies SM Energy Sellers that it intends to consummate the purchase of the portion of the Assets to which its Preferential Right applies or (B) the time for exercising a Preferential Right has not expired and the holder of such Preferential Right has not waived such Preferential Right, then, in each case, such portion of the Assets affected by such Preferential Right shall be excluded from the Assets to be conveyed to Buyer at Closing and the Purchase Price shall be reduced by the Allocated Value of such excluded portion of the Assets. SM Energy Sellers shall be entitled to all proceeds paid by a Person exercising a Preferential Right prior to the Closing. If, after Closing (1) such holder of such Preferential Right thereafter fails to consummate the purchase of the portion of the Assets covered by such Preferential Right or (2) the time for exercising such Preferential Right expires without exercise by the holder thereof, then SM Energy Sellers shall (x) so notify Buyer and (y) on or before 10 days following delivery of such notice, assign such portion of the Assets to Buyer pursuant to an assignment in substantially the form of the Assignment Assignments and the Purchase Price shall be increased by an amount equal to the Allocated Value of the such portion of the Assets.

Preferential Rights. SM Energy shallTorch, within 10 days after the Execution DatePartnerships, send Black Hawk, TEA, TOC and TOGCO will use their respective reasonable efforts, consistent with industry practices in transactions of this type, to each holder of a Preferential Right a notice requesting the election or waiver by each such holder of its applicable Preferential Rightidentify, in each case in compliance with the contractual provisions applicable to such Preferential Right, requesting a waiver of such right. Any Preferential Right must be exercised subject respect to all terms Material Oil and conditions set forth in this AgreementGas Properties, including the successful closing of this Agreement pursuant to Article XI. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be the Allocated Value of such Asset. (i) All Assets burdened by all preferential rights to purchase and consents to assign ("Preferential Rights for Rights") which (A) the would be applicable Preferential Right has been waived, or (B) the period to exercise such Preferential Right has expired prior to the Closing without the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at the Closing pursuant to the provisions of this Agreement. transactions contemplated hereby and (ii) Ifthe names and addresses of parties holding such rights; in attempting to identify such Preferential Rights, prior and the names and addresses of such parties holding the same, such persons, however, shall in no event be obligated to go beyond their own records. Torch will request, from the parties so identified (and in accordance with the documents creating such rights), execution of waivers of the Preferential Rights so identified. Torch shall have no obligation other than to so attempt to identify such Preferential Rights and to so request such execution of waivers of Preferential Rights (including, without limitation, Torch shall have no obligation to assure that waivers of Preferential Rights are obtained). No Institutional Seller shall have any obligation to take any action regarding Preferential Rights. Except to the Closing extent that Buyer can establish that Torch failed to fulfill the obligations set forth above in this Section 6.3 (Ain which case Buyer shall not indemnify Torch but shall continue to indemnify the Institutional Sellers), Buyer shall indemnify and hold Sellers (and their respective affiliates and the respective officers, directors, trustees, fiduciaries, participants, beneficiaries, employees, attorneys, contractors and agents of Sellers and such affiliates) any holder harmless from and against all claims, actions, causes of a Preferential Right notifies SM Energy action, liabilities, damages, losses, costs or expenses (including, without limitation, court costs and attorney's fees) whatsoever that it intends to consummate the purchase arise out of the portion failure to obtain waivers of Preferential Rights, or consents to assignment, with respect to any transfer by Sellers to Buyer of any part of the Assets Properties and with respect to which its Preferential Right applies or any subsequent transfers WHETHER OR NOT SUCH CLAIMS, ACTIONS, CAUSES OF ACTION, LIABILITIES, DAMAGES, LOSSES, COSTS OR EXPENSES ARISE OUT OF NEGLIGENCE (BINCLUDING SOLE NEGLIGENCE, SINGLE NEGLIGENCE, CONCURRENT NEGLIGENCE, ACTIVE OR PASSIVE NEGLIGENCE, BUT EXPRESSLY NOT INCLUDING GROSS NEGLIGENCE) the time for exercising a Preferential Right has not expired and the holder of such Preferential Right has not waived such Preferential Right, then, in each case, such portion of the Assets affected by such Preferential Right shall be excluded from the Assets to be conveyed to Buyer at Closing and the Purchase Price shall be reduced by the Allocated Value of such excluded portion of the Assets. SM Energy shall be entitled to all proceeds paid by a Person exercising a Preferential Right prior to the Closing. If, after Closing (1) such holder of such Preferential Right thereafter fails to consummate the purchase of the portion of the Assets covered by such Preferential Right or (2) the time for exercising such Preferential Right expires without exercise by the holder thereof, then SM Energy shall (x) so notify Buyer and (y) on or before 10 days following delivery of such notice, assign such portion of the Assets to Buyer pursuant to an assignment in substantially the form of the Assignment and the Purchase Price shall be increased by an amount equal to the Allocated Value of the such portion of the AssetsOF ANY INDEMNIFIED PARTY.

Preferential Rights. SM Energy shallSeller will use reasonable efforts, within 10 days after the Execution Dateconsistent with industry practices in transactions of this type, send to each holder of a Preferential Right a notice requesting the election or waiver by each such holder of its applicable Preferential Rightidentify, in each case in compliance with the contractual provisions applicable to such Preferential Right, requesting a waiver of such right. Any Preferential Right must be exercised subject respect to all terms material Oil and conditions set forth in this AgreementGas Properties, including the successful closing of this Agreement pursuant to Article XI. The consideration payable under this Agreement for any particular Asset for purposes of Preferential Right notices shall be the Allocated Value of such Asset. (i) All Assets burdened by Preferential Rights for which (A) all preferential rights to purchase, and all rights to require that consents to assignment of any portion of the Oil and Gas Properties be obtained, which would be applicable Preferential Right has been waived, or to the transactions contemplated hereby and (B) the period parties holding such rights; in attempting to exercise such Preferential Right has expired prior identify the same, Seller shall in no event be obligated to go beyond its own records. Schedule 4.02 lists the parties holding preferential rights which would be applicable to the Closing without transactions contemplated hereby which have been identified by Seller as of the applicable holder of such Preferential Right electing to enforce its Preferential Right, shall, in each case, be assigned to Buyer at date hereof. Promptly upon the Closing pursuant to the provisions full and proper execution of this Agreement., and receipt of the Deposit, Seller will request, from the parties so identified (and in accordance with the documents creating such rights), waivers of the preferential rights to purchase and consents to assign which were so identified. Seller shall have no obligation hereunder, other than to attempt to identify, with respect to such Oil and Gas Properties, such preferential rights and requirements for consent to assignment and to so request such waivers and consents, but with the understanding that Seller shall have no obligation to assure that such waivers and consents are obtained. Seller shall provide Purchaser with copies of all correspondence sent or received by Seller in connection with such efforts contemporaneously with the receipt or sending thereof. The requests and notices sent by Seller to the holders of preferential rights and consent rights shall be in form reasonably satisfactory to Purchaser. The Parties further agree with respect to such preferential rights or consents as follows: (ii) If, 4.02.01 If prior to the Closing (A) any holder a party from whom a waiver of a Preferential Right notifies SM Energy that it intends preferential right to consummate purchase is requested refuses to give such waiver, Seller will tender the purchase of required interest in the portion of the Assets to which its Preferential Right applies or (B) the time for exercising a Preferential Right has not expired Oil and the holder of such Preferential Right has not waived such Preferential Right, then, in each case, such portion of the Assets Gas Property affected by such Preferential Right shall be excluded from the Assets to be conveyed to Buyer at Closing and the Purchase Price shall be reduced by the Allocated Value of such excluded portion of the Assets. SM Energy shall be entitled to all proceeds paid by a Person exercising a Preferential Right prior unwaived preferential right to the Closing. Ifholder, after Closing (1) such holder of such Preferential Right thereafter fails to consummate the purchase of the portion of the Assets covered by such Preferential Right or (2) the time for exercising such Preferential Right expires without exercise by the holder thereof, then SM Energy shall (x) so notify Buyer and (y) on or before 10 days following delivery of such notice, assign such portion of the Assets to Buyer pursuant to an assignment in substantially the form of the Assignment and the Purchase Price shall be increased by holders thereof at an amount equal to the Allocated Value proportionate part of the amount specified in Exhibit D hereto for the affected Lease or Well, reduced proportionately, if less than the entire interest of Seller in any Lease or Well must be tendered. If, and to the extent that, such preferential right to purchase is exercised by such party or parties, and such interest in such Lease or Well is actually sold to such party or parties so exercising such right, such interest will be excluded from the transaction contemplated hereby and the Base Purchase Price will be reduced by such amount (or proportionate part thereof, as the case may be) so specified in Exhibit D hereto for the affected Lease or Well. 4.02.02 If, on the Closing Date, (a) there remain preferential rights to purchase which have not been waived or for which the applicable time within which the holder thereof may elect to exercise such rights has not expired and (b) the total amount of adjustments which would be made to the Base Purchase Price in the event all of such preferential rights were exercised by the holders thereof, together with the net aggregate of all other adjustments permitted by this Agreement (for purposes of this subsection the "Total Possible Adjustments"), would be sufficient to permit termination (for purposes of this subsection the "Termination Threshold") of this Agreement under Section 10.01 (B), then Closing shall be extended to the earlier of (i) a date two (2) business days following the date that sufficient waivers of preferential rights to purchase are received (or the time period for exercise thereof has expired without such rights being exercised) to reduce the then Total Possible Adjustments to a level below the Termination Threshold or (ii) the first date on which all preferential rights have been exercised, waived or for which the time period within which to exercise same has expired without action. 4.02.03 In the event Closing occurs prior to the expiration of the period within which the holder of any given preferential right is permitted to make its election, then the Oil and Gas Property affected by such preferential right will be conveyed to Purchaser at Closing and, in the event the preferential right is exercised by such third party after Closing, Purchaser shall convey the affected Oil and Gas Property to such third person in full compliance with the terms of the agreement pursuant to which the preferential right exists at the amount specified in Exhibit D hereto (proportionately reduced, if applicable) for the applicable portion of the AssetsSubject Properties, and Purchaser shall be entitled to the consideration for the sale of such Oil and Gas Property. 4.02.04 The failure of Seller to obtain any required consent to assign prior to Closing shall constitute a Title Defect under the provisions of Section 7.01.02. 4.02.05 Except to the extent that Purchaser can establish that Seller failed to fulfill the obligations set forth above in this Section 4.02, Purchaser shall indemnify and hold Seller harmless from and against all claims, actions, liabilities, damages, losses, costs or expenses (including court costs and attorneys fees) whatsoever that arises out of the failure to obtain waivers of preferential rights to purchase or requirements for consent to assignment with respect to any transfer by Seller to Purchaser of any part of the Subject Properties and with respect to any subsequent transfers.

Preferential Rights. SM Energy shallAfter Closing, within 10 days after the Execution Date, send to each if (i) any holder of a Preferential Right a Rights alleges improper notice requesting of sale, or (ii) SELLER or PURCHASER discover, or any third party alleges, the election or waiver by each such holder existence of its applicable additional Preferential RightRights, in each case in compliance with the contractual provisions applicable SELLER and PURCHASER will attempt to obtain waivers of those Preferential Rights. If SELLER and PURCHASER are unable to obtain waivers of such Preferential RightRights, requesting a waiver of and such right. Any Preferential Right must be exercised subject Rights are not deemed waived, or the third party ultimately establishes and exercises its rights, and such exercise denies the Property to all terms and conditions set forth in this AgreementPURCHASER, including then the successful closing of this Agreement pursuant to Article XI. The consideration payable under this Agreement for any particular Asset for purposes of Parties shall address unwaived Preferential Right notices shall be the Allocated Value of such Asset.Rights as follows: (i) All Assets burdened by To the extent that the Preferential Rights for which (A) are rights of first refusal on the applicable same terms and conditions as required by this Agreement, PURCHASER shall satisfy the Preferential Right has been waivedRights obligations and shall indemnify, defend and hold SELLER harmless from and against any and all Claims arising from or (B) the period related to exercise PURCHASER'S satisfaction of any such Preferential Right has expired prior Rights obligations. PURCHASER shall be entitled to the Closing without the applicable holder receive (and SELLER hereby assigns to PURCHASER all of such Preferential Right electing to enforce its Preferential Right, shallSELLER'S rights to) all proceeds received by SELLER, in each caseconnection with the sale, be assigned due to Buyer at an exercise of Preferential Rights, of any portion of the Closing pursuant Property PURCHASER was to the provisions of receive under this Agreement. PURCHASER'S receipt of proceeds from the sale of the affected Property shall be PURCHASER'S sole remedy with respect to if undiscovered or alleged rights of first refusal are established and exercised after Closing. (ii) If, prior to To the Closing (A) any holder of a extent the unwaived Preferential Right notifies SM Energy that it intends to consummate are not addressed in Section 5.5.3(a)(i) above, then SELLER and PURCHASER will rescind the purchase assignment of the portion of the Assets to which its Preferential Right applies or (B) the time for exercising a Preferential Right has not expired and the holder of such Preferential Right has not waived such Preferential Right, then, in each case, such portion of the Assets affected by such Preferential Right shall be excluded from the Assets to be conveyed to Buyer at Closing and the Purchase Price shall be reduced by the Allocated Value of such excluded portion of the Assets. SM Energy shall be entitled to all proceeds paid by a Person exercising a Preferential Right prior to the Closing. IfProperty under this Agreement, after Closing (1) such holder of such Preferential Right thereafter fails to consummate the purchase of the portion of the Assets covered by such Preferential Right or (2) the time for exercising such Preferential Right expires without exercise by the holder thereof, then SM Energy which SELLER shall (x) so notify Buyer and (y) on or before 10 days following delivery of such notice, assign such portion of the Assets to Buyer pursuant to an assignment in substantially the form of the Assignment and the Purchase Price shall be increased by an amount equal to pay PURCHASER the Allocated Value of the such portion affected Property, and PURCHASER shall immediately reassign the affected Property to the SELLER free of all liens, burdens, and encumbrances arising by, through or under PURCHASER. Rescission of the Assetsassignment of the affected Property and receipt of the Allocated Value of the affected Property shall be PURCHASER'S sole remedy if undiscovered or alleged Preferential Rights (not covered in Section 5.5.3(a)(i))are established and exercised after Closing.